CHRISTIE A LAWE, Employee
MENOMINEE INDIAN TRIBE, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The employee worked for ten years for the employer, most recently as an Internet Technology Coordinator for the Community Resource Center of the Menominee Indian Tribe. She held her most recent position for one and one half years and her duties consisted of computer maintenance, software loading and trouble shooting in case of problems with the computer system. She did not have any supervisory responsibilities. She previously worked as a computer support specialist for the employer's Management Information Department. The employee was discharged on September 26, 2007 (week 39) following an audit of her computer. The audit was part of a larger departmental audit.
Computer Audit Results
The employee's work computer contained:
(1) a picture of a man with his erect penis exposed,
(2) a video of a man apparently having sex with a blow up doll, and
(3) a sexually suggestive video involving young individuals, although the video indicated that the participants were at least 18 years old, given the appearance of the individuals involved the employer referred this to the Federal Bureau of Investigation in case it constituted child pornography, and
Employer's Policies
The employer has several different policies applicable to computer usage. The employee signed an acknowledgement of receipt of the employer's "COMPUTER, EMAIL AND INTERNET ACCESS POLICY" providing that if a worker has a password to access the employer's computer system, email, the Internet or any other system of electronically stored information, the worker will use it only for authorized purposes. The policy provides that a worker understands that all information stored and, transmitted or received through the employer's systems is the property of the employer and "is to be used only for job related purposes." The policy allows for monitoring with violation of the policy subjecting a worker to disciplinary action up to discharge. Similarly, unauthorized use of the employer's property is a class 2 infraction leading to written warning, three-day suspension or immediate termination depending on the severity of the conduct. Classified within such an infraction is violation of the employer's computer use policy.
The employer's policy further provides,
"The tribe recognizes that technology is required in today's world and has provided access to users to communicate with each other and perform research in the interest of the position they hold in the tribe. . . . Open access requires that individual users act responsibly and respect the rights of other users and respect the integrity of the system."
The email procedures prohibit offensive demeaning or disruptive messages; specifically, messages that are contrary to the employer's policy concerning equal employment and sexual harassment. Finally, the employer's network, including its connection to the Internet is to be used for business related purposes only and not for personal use. Personal use is allowed on a designated break or lunch period with unauthorized use of the Internet strictly prohibited. Unauthorized use includes but is not limited to "connecting, posting or downloading pornographic material" or "intention to disable or compromise the security of information contained in the employer's computer."
Following the employee's discharge, she initiated a claim for unemployment insurance benefits. The employee appealed the initial determination which denied benefits and, following a hearing, a decision was issued by an administrative law judge finding that the employee's discharge was not for misconduct connected with her employment. The employee was paid unemployment insurance benefits totaling $8,144.00 for the calendar weeks ending October 6, 2007 through March 8, 2008 (weeks 40 - 10).
Misconduct Issue
The employer petitioned the appeal tribunal decision arguing that the employee should be denied unemployment insurance benefits pursuant to Wis. Stat. § 108.04(5) which denies benefits to a worker who is discharged for misconduct connected with the employment. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:
. . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute.
Thus, the issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.
Based upon the supervisor's testimony and the employee's discharge letter, the employee was discharged for the following reasons:
(1) the audit reflecting that only 10 percent of the space on her computer was dedicated to work,
(2) the inappropriate software on her computer, namely the DVD software,
(3) the storage of data containing worker reviews, passwords, tribal enrollment dates, birthdates and addresses,
(4) the excessive amount of personal photos stored on her computer,
(5) the offensive material contained on her computer, and
(6) the creation of a restricted subfolder on her computer containing downloaded files and pictures from the employer's network.
The employer failed to present firsthand evidence to establish violation of its rules with respect to points (1), (2) or (3) above. Specifically, the employer failed to present any firsthand evidence to establish the actual audit results argued in point (1); instead the supervisor only presented hearsay evidence about the summary audit results. The employer also failed to dispute the employee's credible claim that she placed the DVD software and anniversary video on her computer to show its capabilities to the employer's management as a future purchase. Next, the employer also failed to dispute the employee's claim that the data containing worker reviews, passwords etc. was leftover from her old position and, in support of the employee's claim in this regard, the employer conceded that the employee had not accessed the data since her change in job duties.
With respect to the excessive personal photo allegation, while the employer argued that the employee had 4,000 personal photos stored on her computer, the hearing witness did not actually view the photos and no other individual presented first hand testimony of this audit allegation. Instead, the supervisor explained that the 4,000 number was projected based upon a sample of photos that were actually viewed. The employee only admitted to 100 personal photos on her computer. She further testified that she did not consider her personal photos to be excessive and argued that other workers had personal photos on their computers. The supervisor admitted having personal photos on her computer. In this context, the employer's policy fails to set any clear guidelines and, as such, the employer failed to establish that the employee's conduct related to personal photos on her computer amounted to misconduct.
As for point (5) above, while the employee certainly could not prevent others
from sending her offensive or pornographic emails, once she became aware of the
contents, she had a duty to delete them from her computer. (2) Her failure to do so was a violation of the "authorized use" policy. Next, as to point (6), the employee testified that her 100 personal photos comprised five percent of the photos stored on her computer, leaving at least 2,000 "other" photos. She also conceded that the employer's testimony that there were 4,000 photos on her computer "could be correct." She further admitted creating a "file" for these and other photos which she downloaded from the employer's network and that she restricted access to this file. Although employee contended that she downloaded these photos to show the employer's management, like the appeal tribunal, the commission does not credit this assertion. Some of these photos were offensive and an excessive number were stored. Without any credible work related reason for her actions, her actions violated the both the security and authorized use policies. Combined, these actions were such an egregious violation as to constitute misconduct connected with the employment.
Erroneously Paid Benefits
The employee was paid benefits after the administrative law judge reversed the initial determination. There is no evidence of employer fault as a basis for the erroneously paid benefits. As such, pursuant to Wis. Stat. § 108.22(8)(c), the employee is required to repay the overpaid benefits unless the overpayment was due to departmental error and was without fault, false statement, or misrepresentation on behalf of the employee. Wis. Stat. § 108.02(10e) defines "departmental error" as an error made by the department in computing or paying benefits resulting from:
(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or
(b) Misinformation provided to a claimant by the department, on which the claimant relied.
Further, Wis. Stat. § 108.22(8)(c)2 provides that the mere act of the commission reversing a decision does not constitute departmental error. In this case, the overpayment was created when the commission reached a differing legal conclusion as to whether the employee's actions constituted misconduct. This is not departmental error and the employee must repay the overpaid benefits.
The commission therefore finds that in week 39 of 2007, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employee was paid benefits in weeks 40 of 2007 through 10 of 2008 in the total amount of $8,144.00, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission also finds that the employee is required to repay the overpaid monies to the Unemployment Reserve Fund pursuant to Wis. Stat. § 108.22(8)(a), because waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c); also although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for unemployment insurance benefits beginning in week 39 of 2007 and until seven weeks have elapsed from the week of her discharge and she has earned 14 times her weekly benefit rate in subsequent covered wages. The employee is required to repay the sum of $8,144.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on October 1, 2007, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.
Dated and mailed March 20, 2008
lawechr . urr : 150
MC 690
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission did not confer with the administrative law judge prior to reversing the decision in this matter. The reversal is not due to a differing credibility assessment; in fact, the commission adopted the ALJ's credibility findings regarding the confidential coworker information and whether the employee saved the network data to show to management. The commission's reversal is due to its reaching a differing legal conclusion on the facts as found by the ALJ and admitted to by the employee at the hearing.
cc: Attorney Rebecca A. Loudbear
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